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From "Lamentation and Liturgy to Litigation": the Holocaust-Era Restitution Movement As a Model for Bringing Armenian

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From Marquette Law Review Volume 95 Issue 1 Symposium: Changing Conceptions of Water in Article 3 the Law From "Lamentation and Liturgy to Litigation": The Holocaust-Era Restitution Movement as a Model for Bringing Armenian Genocide-Era Restitution Suits in American Courts Michael J. Bazyler Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Michael J. Bazyler, From "Lamentation and Liturgy to Litigation": The Holocaust-Era Restitution Movement as a Model for Bringing Armenian Genocide-Era Restitution Suits in American Courts, 95 Marq. L. Rev. 245 (2011). Available at: http://scholarship.law.marquette.edu/mulr/vol95/iss1/3 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 14 - BAZYLER.DOCX (DO NOT DELETE) 12/13/2011 12:46 PM FROM “LAMENTATION AND LITURGY TO LITIGATION”: THE HOLOCAUST-ERA RESTITUTION MOVEMENT AS A MODEL FOR BRINGING ARMENIAN GENOCIDE- ERA RESTITUTION SUITS IN AMERICAN COURTS * MICHAEL J. BAZYLER The numerous Holocaust restitution civil lawsuits that began to be filed in the late 1990s and still continue today have yielded over $8 billion in payouts to still-living Holocaust survivors and the heirs of Holocaust victims. The precedent created by the Holocaust restitution movement now makes it possible for suits stemming from the material losses during the Armenian Genocide likewise to be considered by American courts. The Armenian Genocide-era restitution cases filed to date have targeted entities that, while allegedly profiting from the Armenian Genocide, nevertheless were tangential actors to the genocide. The next step in the burgeoning Armenian Genocide-era restitution movement would be the filing of suits against the Republic of Turkey and its state-owned enterprises that directly profited from the genocide. Until recently, suits against these foreign sovereign defendants would have been barred by the Foreign Sovereign Immunities Act (FSIA). However, recent decisions by the United States Supreme Court and the Ninth Circuit interpreting FSIA in relation to Holocaust restitution have now made possible, for the first time in history, actions against the Republic of Turkey and its state-owned * Professor of Law and The “1939” Club Law Scholar in Holocaust and Human Rights Studies, Chapman University School of Law, California; former Research Fellow, United States Holocaust Memorial Museum, Washington, D.C.; former Research Fellow and holder of the Baron Friedrich Carl von Oppenheim Chair for the Study of Racism, Antisemitism and the Holocaust, Yad Vashem (The Holocaust Martyrs’ and Heroes’ Remembrance Authority of Israel), Jerusalem. The author expresses his appreciation to student research assistants Ani Anaiyan, Blair Russell, and Eli Economou for their invaluable assistance with this project. In the interest of full disclosure, the author has acted as legal advisor to some of the Armenian Genocide-era suits discussed in this article. The author was not involved in any of the Holocaust-era suits discussed herein. 14 - BAZYLER.DOCX (DO NOT DELETE) 12/13/2011 12:46 PM 246 MARQUETTE LAW REVIEW [95:245 entities for acts committed during the Armenian Genocide. This article provides a blueprint for such suits. I. INTRODUCTION ....................................................................................... 247 II. THE HOLOCAUST RESTITUTION LITIGATION ................................... 249 A. “As a moth is drawn to light”: Why American Courts? .......... 249 B. Symbolic Justice .......................................................................... 253 III. USING HOLOCAUST RESTITUTION LITIGATION AS A MODEL FOR SEEKING JUSTICE FOR THE ARMENIAN GENOCIDE ........... 255 A. Suing the Tangential Actors: Armenian Insurance Litigation .................................................................................... 255 B. Suing the Tangential Actors Redux: The German Banks ........ 266 IV. TURKISH FOREIGN SOVEREIGN IMMUNITY FROM CLAIMS IN THE UNITED STATES ........................................................................ 284 A. Foreign Sovereign Immunity as a Bar to a Suit Against Turkey ......................................................................................... 285 B. The Applicability of FSIA and Its Exceptions to Events Arising out of the Armenian Genocide .................................... 287 1. The “Commercial Activities” Exception .......................... 289 2. The “Takings” Exception ................................................... 291 C. Suing Turkey and Its State-Owned Entities .............................. 301 V. CONCLUSION .......................................................................................... 302 14 - BAZYLER.DOCX (DO NOT DELETE) 12/13/2011 12:46 PM 2011] FROM LAMENTATION AND LITURGY TO LITIGATION 247 For the first time [the Armenian community] has gone beyond lamentation and liturgy to litigation, from picketing and going to church every April 24 [the Armenian Day of Remembrance] and mourning to taking legal action. Holocaust victims’ heirs showed me the way.1 I. INTRODUCTION A recurring theme in writings about the Armenian Genocide is the focus on efforts to obtain recognition of the genocide from the Republic of Turkey.2 One also finds, in some instances, discussion about using international and multinational organizations like the United Nations and the European Union to seek some form of reparation for the few living survivors and the much larger group of descendants of the mass murder of Armenians committed in Ottoman Turkey between 1915 and 1923.3 This Article takes a different approach by focusing on the role of United States domestic law in dealing with the Armenian Genocide. It specifically examines the use of American-style civil litigation as an 1. Beverly Beyette, He Stands Up in the Name of Armenians, L.A. TIMES, Apr. 27, 2001, at E1 (internal quotation marks omitted) (quoting Armenian-American attorney Vartkes Yeghiayan, who represented plaintiffs in Armenian Genocide-era restitution suits). 2. Roger W. Smith, The Armenian Genocide: Memory, Politics, and the Future, in THE ARMENIAN GENOCIDE: HISTORY, POLITICS, ETHICS 1, 7 (Richard G. Hovannisian ed., 1992) (stating that “Turkey will not acknowledge the genocide, but public recognition of it by other countries may go some way toward healing the rage that destroys.”); see also PHILIP HERBST, TALKING TERRORISM: A DICTIONARY OF LOADED LANGUAGE OF POLITICAL VIOLENCE 77 (2003) (“Turkey does not recognize the 1915 massacre of Armenians as genocide,” but instead refers to the genocide as “a tragic civil war initiated by Armenian nationalists”). 3. See, e.g., SEDAT LAÇINER ET AL., EUROPEAN UNION WITH TURKEY: THE POSSIBLE IMPACT OF TURKEY’S MEMBERSHIP ON THE EUROPEAN UNION 66–70 (2005) (discussing how Turkey’s non-recognition of the Armenian Genocide presents obstacles to Turkish entry into the European Union); Robert Melson, Provocation or Nationalism: A Critical Inquiry into the Armenian Genocide of 1915, in THE ARMENIAN GENOCIDE IN PERSPECTIVE 61, 81 n.1 (Richard G. Hovannisian ed., 1986). Further, “[a]n insightful discussion of the concept and of the efforts of the UN to apply the Genocide Convention” focuses on the idea that the terms genocide and holocaust are used too casually. Melson, supra, at 81 n.1 (citing LEO KUPER, GENOCIDE: ITS POLITICAL USE IN THE TWENTIETH CENTURY (1981); and LUCY S. DAWIDOWICZ, THE HOLOCAUST AND THE HISTORIANS (1981)). However, some scholars have suggested that the “term holocaust be reserved for instances of extermination” and that “the Armenian [G]enocide of 1915 is one such instance” and, thus, an instance appropriate for UN governance. Id. (referring to Yehuda Bauer, Essay, The Place of the Holocaust in Contemporary History, in STUDIES IN CONTEMPORARY JEWRY 201–04 (Jonathan Frankel ed., 1984)). 14 - BAZYLER.DOCX (DO NOT DELETE) 12/13/2011 12:46 PM 248 MARQUETTE LAW REVIEW [95:245 instrument for bringing accountability to those public and private entities that are still profiting today from the Armenian Genocide. The domestic courts of the United States have, so far, been the only courts ready to recognize civil suits for monetary damages as instruments for remedial action in response to genocide and other massive human rights abuses. The most dramatic use of civil litigation for this purpose centers on the genocide of the Jews during World War II at the hands of Nazi perpetrators and their accomplices, the event known as the Holocaust.4 The Holocaust restitution movement, launched in the late 1990s5 in American courts against European corporations and governments for their wrongful wartime activities,6 4. Burt Neuborne, Preliminary Reflections on Aspects of Holocaust-Era Litigation in American Courts, 80 WASH. U. L.Q. 795, 795 (2002). Neuborne writes, Aided by diplomatic initiatives by Germany and the United States, and by the vigorous support of many political figures and community organizations, Holocaust-related litigation in American courts against Swiss, German, Austrian, and French corporations over the past six years has resulted in the assemblage of a vast pool of assets valued in excess of $8 billion for distribution to Holocaust victims around the world. Id.; see also Graham O’Donoghue, Precatory Executive Statements and Permissible
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